Opinion
December 21, 1990
Appeal from the Erie County Court, La Mendola, J.
Present — Callahan, J.P., Doerr, Denman, Balio and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: The court properly refused to charge assault in the third degree as a lesser included offense of assault in the second degree. Viewing the evidence in the light most favorable to the defendant, we find that defendant's own testimony that he acted in self-defense negated any claim of reckless conduct, and that there was no reasonable view of the evidence that would support a finding that defendant committed assault in the third degree and not assault in the second degree (see, People v. Walker, 151 A.D.2d 980, lv denied 74 N.Y.2d 853; People v. Zayas, 140 A.D.2d 395, lv. denied 72 N.Y.2d 869).
There is no merit to defendant's contention that the People failed to disprove the defense of justification. The victim and defendant argued when the victim accused defendant of taking a necklace. The victim and an eyewitness testified that, during the struggle, the victim disengaged himself from defendant and stepped away. The victim testified that he stopped struggling because defendant said that he would return the necklace. After the victim stepped back, however, defendant grabbed a knife from the kitchen sink and stabbed him. The eyewitness testified that defendant had a sharp object in his hand and that he cut the victim. The evidence, viewed in the light most favorable to the People, was sufficient to disprove the defense of justification beyond a reasonable doubt (see, People v. Martinez, 149 A.D.2d 438, lv. denied 74 N.Y.2d 814).
Defendant did not object to the court's charge on intent and that issue was not preserved for our review (see, CPL 470.05; People v. Thomas, 50 N.Y.2d 467). In any event, it is without merit (see, People v. Getch, 50 N.Y.2d 456, 465). Defendant's contention that a 12-year-old robbery conviction was too remote for use on cross-examination was not raised during the Sandoval hearing (see, People v. Sandoval, 34 N.Y.2d 371). Thus, that issue also was not preserved (see, People v. Osuna, 65 N.Y.2d 822; People v. Cooper, 147 A.D.2d 926, lv. denied 74 N.Y.2d 738), and likewise has no merit (see, People v. Meli, 142 A.D.2d 938, lv. denied 72 N.Y.2d 921). We decline to reach either unpreserved issue in the interest of justice (see, CPL 470.15).
Finally, we find that defendant's sentence is neither harsh nor excessive.